Friday, September 4, 2009

Boogity Brawl Comes To A Legal End

It certainly is interesting to see how two people can have different opinions on the same topic. It is even more interesting to see how we define "intellectual property" on the NASCAR side of the legal system. This is the article in Cupscene.com:

A spokesperson for NASCAR’s Darrell Waltrip Thursday responded to a lawsuit filed against a New Brunswick Canada businessman for the use of the word ‘boogity’.

Randy Nicholson, a long-time racing fan, was forced to change the name of his tiny memorabilia shop under the threat of a lawsuit by Waltrip who accused Nicholson who of infringing on a trademark Waltrip claims he has on the word ‘boogity’. Nicholson initially called his business Boogity Boogity Racing, and then later changed the name to Boogity Sportswear.

As a television commentator, Waltrip says, “Boogity, boogity, boogity, let’s go racin’, boys” each time the green flag drops.

According to Nicholson though, the trademark that wasn’t registered by Waltrip until four years after Nicholson’s store was established.

Waltrip’s longtime business manager however, took issue with Nicholson’s claims.

“It’s unfortunate to read the articles about Mr. Nicholson’s store, as they do not tell the whole story”, said Van Colley in a statement. “The truth is DW first came up with Boogity Boogity Boogity and then the name of the store appeared.

“Mr. Nicholson only used Boogity as a result of DW’s earlier use on FOX. In my opinion, it is not a coincidence that DW started his broadcasts with Boogity, Boogity, Boogity in March of 2002 and then 9 months later, with his business partner, Richard Poulin, that Mr. Nicholson incorporated a company called BOOGIDDY BOOGIDDY RACING INC on November 6, 2002. He then changed the corporate name to Boogity Boogity Boogity Racing Inc on March 3, 2003. That company was dissolved on July 25, 2008. Then the store operated under the name Boogity Sportswear.

The shop went as far as applying for DW’s trademark of Boogity, Boogity Boogity which was rejected in late 2007 by the Canadian Trademark Office.”

According to records, Waltrip registered the catch phrase as a trademark in Canada on Oct. 31, 2005.

“My point is there is no way Mr. Nicholson should be surprised about what has happened,” Van Colley said. “It is odd that the shop filed for DW’s trademark.”

Whether Mr. Nicholson is a small business owner or the owner of a large corporation is irrelevant to the matter. You simply can’t take some one’s legally trademarked intellectual property and attempt to profit from it. Common sense tells me that I can’t simply throw up some golden arches in my front yard, hang a sign that says McDonalds on it and fire up my grill to attempt to sell some hamburgers simply because I want to.

We appreciate Mr. Nicholson being a NASCAR fan and his selling of legally licensed NASCAR merchandise in his store.”

Nicholson has until next Tuesday to wipe his shop clean of the word “boogity” and has already taken down his signs.

“I never dreamed in a million years that something like this could ever happen,” Nicholson said. “I’ve been open for eight years, but now I have had to take my signs down, and people driving past think I am closed.

“I really don’t understand this,” he added. “It is not like I was making money off of Darrell Waltrip’s name. It’s a word for goodness sakes- ‘boogity’ - and I am not even sure it is a real word. It’s a redneck word.

Nicholson said it will cost him between $5,000 and $8,000 to register a new name, put up signs, change his business cards and letterhead, order new checks change the way his phone is listed, and set up a new website.

“I used to like Darrell Waltrip,” Nicholson added. “But I think if I had him here now, I’d tear out his wind pipe.”

Speaking for Waltrip Van Colley said. “We also wish no ill will to Mr. Nicholson, despite his comment of wanting to “tear out DW’s wind pipe.” At the same time, I won’t apologize for protecting DW’s legal rights. We, like NASCAR, the drivers and teams in our sport fight this kind of thing all the time.”

That certainly is an interesting look at some of the off-track issues NASCAR personalities have to deal with in the business world.

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18 comments:

The guy knew better than to think he could get away with using Waltrip's licensed property. Maybe he thought he was such a small business, Waltrip's people would never find out. Since he tried to legally protect the phrase himself, he clearly knew what he was doing and thought Waltrip hadn't done the legal legwork in Canada.

I'm more upset over David Gilliland getting the shaft and Bobby Labonte driving a S&P car.

Tracy, I know it is off topic so JD may not allow this comment in this spot, but I really felt bad for Bobby Labonte when he was replaced with Darnell. Now, someone else is replaced to keep Bobby's consecutive streak alive.

DW has always seemed to be an astute businessman, so I'm not surprised at this action. If you allow one person to use the name without authorization, it leaves the door open for others to do so and use that as a precedent.

there have been people named McDonald or whatever that these big corporations go after, but I guess that's part of the price of doing business. I don't think DW is the bad guy here, sounds like this guy was trying to pull a fast one.

I don't know why Yates couldn't have just run their own S&P for Bobby, they must have a stable of the 38 cars. But everyone is struggling financially. Not sure giving up a S&P ride is that bad...

As for this, The guy called his store that before DW trademarked the phrase in Canada...sooooo its hard for me to solidly stand on either side. After trying to register the trademark and getting it denied, he probably should have done the name change then to avoid conflict.

All I can say is that guy in Canada probably knew what a bunch of ya-hoos he was dealing with. I have no clue as to why anyone would waste their time with such rot-gut except Waltrip. His mouth was too big when he raced, and it has only gotten bigger. What a Circus.

It's trademarked. You don't have to "invent" something to trademark it.

Look at some trademarked examples:

"Three-Peat" Pat Riley LA Lakers.

"Let's Get Ready to Rumble" Michael Buffer

"BAM!" Emeril LaGasse

and even:

"They are who we thought they were" Dennis Green

Not exactly literary masterpieces.

But you associate each one with that person(s).

In this litigious society I don't blame any of them for trade marking any of them and making a buck off of it.

In the Three Peat example, the trademark of Pat Riley was upheld by the federal trademark board when a group USC students applied for a trademark with a different spelling back in 2005 when they anticipated USC winning it's 3rd BCS title. The misspelling didn't differentiate it from the original.

Trademarks matter. If you own a trademark and it's being violated in any way, that's a violation. That's "one of those commerce deals". It's designed to protect from shady people who abuse trademarks. (There are at least two movie studios who should be filing cease-and-desist orders at a small studio for making disgusting content that abses their trademarks.)

Gilliland's patience was well-rewarded. He earned a substitute role in the Wood Brothers (Bill Elliott was injured) for tomorrow, and earned a few rides in the Gibbs #02.

And if I'm a sponsor, I'd definitely want Bobby Labonte. Remember the stories last year that he could go to the Childress team? TRG gets some support from RCR, so I wouldn't be surprised if a rebuilding Childress decides to let TRG do R&D for his team. Besides, the Taxslayer.com sponsorship was well-deserved. The #71 team hasn't had a DNQ since Daytona even though their "limited" schedule hasn't allowed them to race as many times as they should, the Taxslayer.com sponsorship was deserved.

Bobby,I was hoping if JGR had not had Gilliland signed to drive the #02, which was reported last month on SIRIUS, that they would do Bobby a cool favor and have a reunion of sorts and drive the car, TRG's deal is better though and actually did work out to help Bobby. Lots of shuffling though in the last couple days will make for an interesting qualifying session tomorrow. The seat changes will be the most curious for the #71 and #21 teams.

Back OT, absolutely a trademark is a trademark, but the way I read it the guy started his company before it was even trademarked and is probably guilty of being slow to change after the fact.

Kinda think its going to turn into a non-story though since DW's lawyers pretty much got what they wanted with the guy changing the company name to a cost of 5-8,000 to change number listings, business cards, signage, etc.

It seems to me that the practical problem is that DW would get nothing financially from the store's use of "boogity," but might be presumed to be involved and then criticized if someone bought a defective product there.

There was a local, one location restaurant in central NC that had a "whopper" hamburger on its menu for many, many years, and before BK had its "whopper." Several years ago, as I recall the situation, said NC "whopper" came to the attention of BK and they forced the restaurant to change the name of its "whopper," even though the restaurant's use of "whopper" pre-dated BK's. I am certain the restaurant never thought to trademark its "whopper" and I do not recall whether BK sued or just threatened to.

So, I'm guessing that DW and his army of lawyers are going to travel around the world looking for the word "boogity" on any establishment? I know that the word is on the marquis on a nightclub in a shabby neighborhood in Ho Chi Minh City in Vietnam---it's called Boogity Dance USA. And, there's a store in Chennai, India called "Boogity Bracelets". To me, this is petty (no pun intended using the name Petty) despite what many think is trademark infringement.

BTW, are trademarks international? Since when do US Trademark Laws transcend international borders? How does DW have the right to sue someone in Canada unless he was somehow able to file trademark protection in Canada?

Like I said, DW is going to have to travel far and wide to flush out every single business in the entire world who may be using that word. Personally, I think it's all silly, and even to those who've trademarked such words as Final Four and the rest.

I have no sympathy for this guy. CLEARLY he is trying to trade on Waltrip's famous phrase. It's plain as day to see, but only backed up more by the proof of his repeated attempts to have a name closer to Waltrip's.

The real question is: When are Sleepy Time motels going to get sued by Jerry Punch? (just kidding!)

I saw an interview with Michael Buffer (the "Let's Get Ready to Rumble" guy) and he trademarked that phrase. He said he had made MILLIONS suing car dealerships, movie companies, t-shirt companies, etc. for using his phrase without permission.

If Waltrip wanted to, he could sue this guy for big bucks. But he isn't -- he is only suing to make him stop. Believe it or not, that is taking the high road. Good for DW.

2002 precedes DW's trademark. Maybe he should change it back to its original spelling (BOOGIDDY, i think) and DW should provide the $5-8k to protect his intellectual (oxymoron with DW's involvement) property.